Opinion
Opinion By: Albert B. Chandler III, Attorney; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Mayfield violated the Open Records Act in denying Mayfield Messenger Editor Mike Turley's August 14, 2002, request for copies of "any contract, letter, memo, legal agreement or document . . . between the City of Mayfield or any of its legal entities made during this year and Mr. L. V. McGinty regarding his reported investigation on behalf of the City of Mayfield . . . that states the amount he is being paid and the purpose of the investigation." For the reasons that follow, we affirm the city's denial of Mr. Turley's request on the basis that no responsive records exist, but only if the city did not enter into a written contract or agreement with Mr. McGinty, and he has submitted no written bill for services and received no documented payment for services since he was employed. However, if any such records documenting the employment relationship between Mr. McGinty and the city exist they must be disclosed notwithstanding the ongoing investigation. Consistent with KRS 61.878(4), portions of the records may be redacted if they reveal the previously undisclosed focus of the investigation or would otherwise harm the city by premature release of information to be used in a prospective law enforcement action or administrative adjudication pursuant to KRS 61.878(1)(h).
On behalf of the City of Mayfield, S. Boyd Neely, Jr., denied Mr. Turley's request in a letter dated August 19, 2002. He advised:
First, no records presently exist which are encompassed by your request. Secondly, even if they did exist or if they exist in the future, these records are exempt from disclosure pursuant to KRS 61.878(1)(a), (h), (i) and (j). Any information encompassed by your request is an investigation pursuant to a Complaint which has been filed and which will ultimately go to an administrative adjudication.
Shortly thereafter, Mr. Turley initiated this appeal noting that a Messenger reporter "was told twice by Mr. L. V. McGinty of Paducah that he was conducting 'an investigation' on behalf of the city" and that "he was being paid by the City of Mayfield and was not doing the work gratis."
In supplemental correspondence directed to this office following commencement of Mr. Turley's appeal, Mr. Neely reiterated that the city could not honor his request for "any records between the City of Mayfield and any of its entities and a Mr. L. V. McGinty" because "no such records exist." Continuing, he observed:
[I]f the records did exist or if they come to exist in the future, these records are presently exempt from disclosure pursuant to KRS 61.878(1)(a), (h), (i) and (j). Mr. McGinty is performing an investigation pursuant to a complaint/grievance filed by an employee of the City of Mayfield, which will ultimately go to an administrative adjudication. Because of the nature of the complaint/grievance, it was referred to an independent source for investigation. This is clearly exempted by the provisions set forth above.
The City of Mayfield acknowledges after final action is taken that the materials requested by The Mayfield Messenger may be required to be disclosed. However, it is the position of the City that until final action is taken or until a decision is made that no final action will be taken, any materials encompassed within the request of The Mayfield Messenger that may come to exist in the future are exempted. However as stated above, no record even existed which would have been encompassed by the request of The Mayfield Messenger on August 16, 2002.
In support, Mr. Neely cited
City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982) and several opinions of this office.
We concur with the City of Mayfield in the view that it cannot produce for inspection records that do not exist, and that it has no duty to create records to satisfy a request. This position is well established and the open records decisions confirming it are so numerous that to cite them all would unnecessarily lengthen this decision. Suffice it to say that a public agency is not required to, nor can it logically be required to, produce for inspection and copying records that do not exist or are not in its custody. See, e.g., OAG 83-11; OAG 87-54; OAG 91-203; 98-ORD-200; 99-ORD-198. Because the Open Records Act governs access to existing public records in the public agency's custody, an agency cannot, by extension, be required to create records. OAG 76-375; OAG 90-101; 96-ORD-251.
Further, we concur with the city in the view that records of an agency involved in administrative adjudication that are compiled in the process of investigating statutory or regulatory violations may be withheld pursuant to KRS 61.878(1)(h) "if disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective . . . administrative adjudication. " Again, there are numerous decisions supporting this position. See, e.g., 00-ORD-116; 97-ORD-107; 95-ORD-154; 93-ORD-117; OAG 91-57; OAG 87-15. By the same token, we agree with the city that records of an investigative nature may properly be withheld pursuant to KRS 61.878(1)(i) and (j) while an investigation is proceeding and until final action is taken relative to the subject of the investigation. City of Louisville, above;
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times, Ky.App., 663 S.W.2d 953 (1983);
University of Kentucky v. Courier-Journal and Louisville Times, Ky., 830 S.W.2d 373 (1992). "From the[se] exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994).
Nevertheless, we wish to make it abundantly clear that we do not believe the protection from disclosure afforded by these exemptions extends to financial and operational records of the City of Mayfield such as written employment contracts or agreements, billing statements or bills for services, and records documenting payment for services. Such records, inasmuch as they relate to "amounts paid from public coffers are . . . uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. In other words, "Where public funds go, the public's interest follows." 96-ORD-50, p. 4.
The record before us does not indicate who employed Mr. McGinty or whether his employment was memorialized, or required to be memorialized under local procurement law, by written contract. Nor does the record indicate what the terms of his employment were, i.e., when he was to be paid, how he was to be paid, and how much he was to be paid. The record does reflect that Mr. McGinty has been employed by the city to conduct an investigation since sometime before October 7, 2002, when Mr. Turley initiated this appeal, the city having confirmed that "Mr. McGinty is performing an investigation pursuant to a complaint/grievance filed by an employee of the City of Mayfield, which will ultimately go to an administrative adjudication. " If records exist that document this employment relationship, whether they consist of a contract, bill for services, or receipts for payment, they cannot be characterized as investigative records or records of a preliminary nature, and must therefore be disclosed as a means of insuring agency accountability.
Having said this, we note that KRS 61.878(4) provides:
Should any of these records contain information that might compromise the investigation, such as a description of the previously undisclosed focus of the investigation or of the particular services rendered, this information may be redacted and a written explanation for the redactions, with citation to the appropriate exemptions cited, provided to Mr. Turley. The nonexempted portions of these records, if they exist, must be released forthwith.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.